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Education - Education Act - School Boards (2). Prinzen v. Hastings and Prince Edward District School Board [trustee discipline]
In Prinzen v. Hastings and Prince Edward District School Board (Ont Div Ct, 2026) the Ontario Divisional Court considered (school board) trustee-brought JRs, these brought against "two decisions that she breached the Trustees’ Code of Conduct (the “Code”) by disclosing confidential information".
Here the court considers disciplinary sanctions against trustee Code of Conduct violations:Were the Sanctions Unreasonable
[35] The applicant submits that the decisions are unreasonable because the Sanctions exceeded the limits in s. 218.3(3) of the Education Act without addressing the statutory constraints on the Board’s authority. Specifically, she argues that the Board acted beyond its jurisdiction by extending a sanction barring committee participation into a blanket prohibition on attending all Board and committee meetings for 90 days.
[36] S. 218.3(3) of the Education Act in effect prior to January 1 2025 provided:218.3 (3) If the board determines under subsection (2) that the member has breached the board’s code of conduct, the board may impose one or more of the following sanctions:
1. Censure of the member.
2. Barring the member from attending all or part of a meeting of the board or a meeting of a committee of the board.
3. Barring the member from sitting on one or more committees of the board, for the period of time specified by the board. (Emphasis added) [37] The Board argues that the phrase “a meeting” in subparagraph 2 of s. 218.3(3) of the Education Act does not restrict it to imposing a sanction for only a single meeting. It submits that this issue was decided by this Court in Sloat 2024, at paras. 69-71.
[38] In Sloat 2024, a number of complaints arising from alleged breaches which occurred on different dates were joined and were the subject of individual decisions. In the circumstances of that case, it was found that it would make no sense to find that the sanction that could be imposed would depend upon whether the complaints were heard singly in separate proceedings or joined (see paras. 69-71). This was obiter because in that case, the decisions and sanctions were quashed.
[39] In the case of McNicol v. York Catholic District School Board, 2024 ONSC 2919 (Div. Crt.), the York Catholic District School Board found that Trustee McNicol breached the Trustee Code of Conduct when she made disparaging comments about “Italian trustees”. Initially, she was barred from attending all board meetings until the end of her term. This sanction was reduced to barring her from one meeting after the board received a legal opinion that section 218.3(3) of the Education Act only allowed a sanction that barred a trustee from attending one board meeting.
[40] The Board cites Del Grande v. Toronto Catholic District School Board, 2023 ONSC 349 aff’d 2024 ONCA 769 aff’d 2024 ONCA 769 as support for its argument that members can be barred under s.218.3(3) prior to its amendment from attending more than one board meeting. The sanction upheld by the Divisional Court and the Court of Appeal did not bar Mr. Del Grande from attending any board meetings (para. 29 of the Divisional Court decision, para. 12 of the Court of Appeal decision). Rather, he was barred from sitting on committees and from being appointed to any representative position on behalf of the board for a period of three months. The Court of Appeal found at para. 45 that the sanctions did not prevent him from continuing in his functions as a trustee, including taking positions on matters before the Board.
[41] Apart from whether s. 218(3) permitted the Board to impose sanctions which exceeded barring the applicant from more than one Board meeting, there is another issue with respect to the severity of the sanctions imposed. While the Board submits that the findings in the Investigative Reports which were adopted by the Board justify the Sanctions, to which this court ordinarily gives deference, there is nothing in the record in this case to explain how the Sanctions that were imposed were reached.
[42] In this case, the sanction options that were put before the Board in both complaints simply reproduced s. 218 (3) as it existed prior to the January 1, 2025 amendments and advised that the Board shall not impose a sanction which is more onerous but may impose one that is less onerous. There is nothing in the record to show where the 90-day penalty that was imposed in each Decision may have come from. That does not necessarily mean the Board could not consider sanctions on its own. But this raises the question of whether in choosing the maximum sanction available to the integrity commissioner under the new regime in effect January, 2025, the Board did so by reference to those amendments which were not applicable to the Board or code violations prior to January, 2025.
[43] The new regime for sanctions which came into effect January 1, 2025 is set out in s.218.3.1. It provides:218.3.1(1) If the integrity commissioner determines, following an investigation under subsection 218.3 (7), that the member has breached the board’s code of conduct, the integrity commissioner may impose one or more of the following sanctions:
1. Censure of the member.
2. Requiring the board to reduce the member’s honorarium by an amount not exceeding the prescribed amount, requiring the member to return any excess already paid to the member and authorizing the board to recover the excess from the member.
3. Barring the member from attending all or part of one or more meetings of the board or one or more meetings of a committee of the board, for the period of time specified by the integrity commissioner up to a maximum of 90 days or the balance of the member’s term of office, whichever is less. (Emphasis added)
4. Barring the member from sitting on one or more committees of the board, for the period of time specified by the integrity commissioner, up to a maximum of 90 days or the balance of the member’s term of office, whichever is less.
5. Barring the member from becoming the chair or vice-chair of the board or of any committee of the board, or removing the member from any of those positions.
6. Barring the member from exercising the privileges of a board member or acting as a board representative, or removing the member from a position the member holds as a board representative.
7. Subject to any other limits set out in paragraphs 1 to 6, any other sanction that, in the opinion of the integrity commissioner, is reasonable and appropriate in the circumstances.
8. Subject to any other limits set out in paragraphs 1 to 6, any other sanction that, in the opinion of the integrity commissioner, would promote compliance with the board’s code of conduct. [44] Indeed, the Board supported the reasonableness of the sanctions imposed on the basis that they are consistent with the new regime effective January 1, 2025. The Board argued in its factum:[48] Finally, while it was not in force at the time, the Respondent notes the sanctions imposed in this case are consistent with the new regime for the enforcement of trustee code of conducts in the Education Act effective January 1, 2025, which states that a trustee found to have breached the code of conduct may be sanctioned from attending meetings of the board for up to a maximum of 90 days. [45] This lends credence to the concern that the Board in choosing the maximum sanctions available to the integrity commissioner under the new regime, did so by reference to the amendments not applicable to these complaints. This would render the Sanctions unreasonable. Normally that would result in an order remitting the matter to the Board with the benefit of these reasons to reconsider the sanctions. However, since January 1, 2025, jurisdiction over Code matters has devolved to the Integrity Commissioner and the Board no longer has jurisdiction over such matters.
[46] The Sanctions have been stayed by order of Jensen J. (February 13, 2025 - first Sanction) and Labrosse J. (May 26, 2025 - second Sanction) such that the applicant has served 38 days. Whatever the appropriate period is for the suspensions, in our view it would not exceed 38 days. In all the circumstances, it is practical and appropriate to vary the Sanctions to the 38 days of time served. . Prinzen v. Hastings and Prince Edward District School Board
In Prinzen v. Hastings and Prince Edward District School Board (Ont Div Ct, 2026) the Ontario Divisional Court considered (school board) trustee-brought JRs, these brought against "two decisions that she breached the Trustees’ Code of Conduct (the “Code”) by disclosing confidential information".
The court considers some Education Act amendment transition provisions regarding Code of Conduct complaints, here in a JR 'reasonableness' context:[29] The applicant submits that the Second Decision is unreasonable because, after January 1, 2025, the Board no longer had jurisdiction to determine Code breaches or impose sanctions. She argues that these powers transferred to integrity commissioners under the amendments to s. 218.3(16) through Bill 98 which provides:Transition
218.3 (16) If a member of a board brings an alleged breach of the board’s code of conduct to the attention of the board before the day section 24 of Schedule 2 to the Better Schools and Student Outcomes Act, 2023 comes into force and the board has not, as of that day, made a determination in respect of the alleged breach, section 218.3 of the Act, as it read immediately before that day, applies in respect of the alleged breach.[2] [30] The applicant further argues that the Board failed to provide its own reasons for either Decisions or the Sanctions. Instead, it adopted pre‑written motions and conclusions without meaningfully engaging with the evidence, the reports’ analysis, or the applicable statutory framework.
The Decisions are Reasonable
[31] The Board did not lack jurisdiction to proceed with the Second Complaint under the pre-January 1, 2025 statutory regime. Although there was an amendment of the second complaint on November 9, 2024 which was not brought to the applicant’s attention until after January 1, 2025 (after the amendments to the Education Act came into effect), the amendment was not substantive and only changed the numbered sections referring to the updated Code. Given this, I find that both complaints against the applicant were brought to the attention of the Board before January 1, 2025. The first complaint was determined by the Board prior to January 1, 2025. The second complaint was not. By virtue of the transition provision set out in s.218.3(16), the Board had jurisdiction to proceed with the Second Complaint under the pre-January 1, 2025 statutory regime. . Doherty-Masters v. Waterloo Catholic District School Board
In Doherty-Masters v. Waterloo Catholic District School Board (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against a school board finding that "Trustee Doherty-Masters breached its Code of Conduct".
Here the court considers Education Act sanctions, here against school trustees:[42] This court has previously noted that the potential sanctions under the Education Act are weak, and boards have significant latitude to control their own internal processes: Del Grande v. Toronto Catholic District School Board, 2023 ONSC 349 (Div. Ct.), at paras. 50 and 53, aff’d 2024 ONCA 769, leave to appeal to S.C.C refused, 41593 (May 15, 2025); 2024 ONCA 769, at para. 26. . Teper v. Information and Privacy Commissioner of Ontario
In Teper v. Information and Privacy Commissioner of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed an MFIPPA JR, here against an IPC ruling that "the records requested were not in the TDSB's care or control and that the TDSB [SS: 'Toronto District School Board'] conducted a reasonable search for any responsive records".
The court considers the issue of an institution's 'custody and control' of records (under Ontario MFIPPA [s.4(1)]), here where the records related to the retention by a school board of an Integrity Commissioner to investigate a complaint against a trustee of breach of the Board's Code of Conduct:Was the interpretation and application of s. 4(1) of the Act reasonable?
[34] The Applicant submits that the IPC was wrong in its interpretation and application of the law to the facts in this case. The Board submits that the IPC did not err, and that the records, if they exist, are in the custody or control of the IC, not the Board.
The Law:
[35] The parties agree that the IPC correctly identified the relevant tests in its decision:[10] Section 4(1) establishes the right of access under the Act. That section reads, in part:Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless... [emphasis added]. [11] This section makes it clear that the Act applies only to records that are in the custody or under the control of an institution. A record will be subject to the Act if it is in the custody or under the control of an institution; it need not be both.
[12] A finding that a record is in an institution's custody or control does not necessarily mean that a requester will be provided access to it. Such a record may be excluded from the application of the Act under one of the provisions in section 52, or may be subject to a mandatory or discretionary exemption at sections 6-15.
[13] The courts and the IPC have applied a broad and liberal approach to the custody or control question. The IPC has developed a non-exhaustive list of factors to consider in determining whether or not a record is in the custody or control of an institution.
[36] There is no dispute between the parties that the TDSB is an institution under the Act. The question is whether the documents are in the TDSB's custody or control.
[37] The Supreme Court of Canada set out a two-part test for determining whether records are under the control of an institution: Canada (Information Commissioner) v. Canada (Minister of Nation Defence), 2011 SCC 25, [2011] S.C.R. 306, at paras. 49-60:(a) Do the contents of the documents relate to a department matter; and
(b) Could the institution reasonably expect to obtain a copy of the documents on request. [38] There was no dispute between the parties that the documents relate to a department matter, but the question is whether the Board could reasonably be expected to obtain a copy of the documents on request.
[39] In Ontario (Children's Lawyer), the Court of Appeal set out various factors to consider when determining whether an institution has "control" of the records and could reasonably be expected to obtain a copy of the records on request.
[40] In considering the second part of the test, on whether the Board could reasonably expect to obtain a copy of the records, the IPC weighed the various factors relevant to the "control" and "custody" issues including those set out in Ontario (Children's Lawyer). The IPC concluded that it was not satisfied that the Board had control over or could expect to obtain the records sought by the Applicant.
....
[42] Under the Education Act, R.S.O. 1990, c. E.2, the Board is responsible for investigating an allegation that a trustee has behaved in a way contrary to the Code. The Applicant submits that the IPC erred because the TDSB cannot abdicate their responsibility to investigate the allegation of trustee misconduct and therefore, cannot transfer custody and control of the related records. The Applicant relies on Ontario Criminal Code Review Board v. Hale (1999), 1999 CanLII 3805 (ON CA), 47 O.R. (3d) 201 (C.A.), in which the Court of Appeal held that the Board could not avoid disclosure of back up tapes, by entering into arrangements with third parties to hold the records. There, the Board replaced their own reporters with independent court reporters to do the very same function previously done by their own reporters, and then suggested the contractors could not be compelled to provide the records. The Court found that the Board would have a right to possession of the tapes. The case before this Court is very different and the IPC addressed this issue.
[43] The Applicant also submits that had the Board requested a copy of the investigator's report, they could have reasonably expected a copy of the report, given that the IC quoted and relied on the report.
[44] The IPC agreed with the Applicant that the Board is responsible for investigating an allegation that a trustee has behaved in a way contrary to the Code. In their reasons, the IPC discussed that the Board set up a process for a complaint of this nature to go through the IC's office. The process ensures that the IC conducts their investigations in an impartial and independent manner, to avoid the IC being subjected to "undue influence" in its investigations. A finding that the IC is merely an officer of the board (or an employee, as in Hale) would erode the important values of the IC's independence and impartiality from the Board in the context of the IC's investigatory and reporting functions.
[45] The IPC addressed this issue as follows:[93] The content of the records relates generally to the board's mandate and functions. However, in my view, the content of the records is more accurately described as relating to the mandate and functions of the IC specifically. While it is true that the board itself has the statutory duty to ensure compliance with the Education Act, it has set up the IC and an independent body to carry out the function of the investigating and reporting on allegations of misconduct. Ultimately, the board carried out its own statutory duties by receiving the IC's reports and recommendations and taking whatever actions the board deems appropriate. [94] As a result, this factor can be considered to weigh in favour of a finding that the board controls the records. However, because of the distinction between the board's and the IC's roles, I find that it carries a low weight.
[46] From reviewing the reasons, the IPC was alive to the various issues in determining whether the Board had custody or control of the requested records and addressed each of the issues and factors in its decision. The IPC's interpretation of the MFIPPA was reasonable and justified in light of the facts before it. Absent exceptional circumstances, a reviewing court will not interfere with factual findings.
[47] Based on reviewing the IPC's reasons, and the record before the court, I find the decisions to be reasonable. The IPC correctly set out the law under the MFIPPA and applied the law to the facts. The IPC also assessed the relevant factors to arrive at their decisions.
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